G. M. LODHA, J. - (1.) ACCUSED - appellant Ratna has filed the appeals against the judgment passed by the learned Sessions Judge, Tonk, dated 31st October, 1977, in Sessions Case No. 14/1977 convicting him under Sec. 302, IPC and sentencing him to imprisonment for life.
(2.) THE prosecution case is that PW/1 Ram Chandra lodged a written report before the S. H. O. , Malpura on 13th November, 1976 that his daughter Sampati by caste Regar is not traceable since 12th November, 1976. THEre were silver ornaments on her person. On 15th November, 1976, he again lodged an information, Ex. P/2, mentioning that his daughter was 10 years of age and was wearing silver ornaments for which information was given on 13th November, 1976, is not traceable and he suspects that Kalolias of Bhagwanpura might have taken her. Investigation was made; but since she was not traceable, no prosecution could take place. On 26th April, 1977, Mool Chand (PW/15), who is an employee in the Sheep & Wool Department, while grazing the cattle show one-skull informed the police. Upon which, the Sub-Inspector of Police, Ashok Kumar (PW/25), started taking active proceedings. He went to the place where skull, skeleton and bones were lying. Some hair were there and some clothes were spread. Site inspection note and recovery memo etc. were prepared. Dr. Om Prakash (PW/18) was called who conducted the post-mortem examination of skull, skeleton, bones etc. which was found. Now, the police started the search of the accused. During the search, it was found that Ratna, accused-appellant, from the very day of disappearance of the girl, was not available in the village and this had created suspicion. On 4th May, 1977. Ratna was arrested. During the course of investigation, on 8th May, 1977. accused Ratna got recovered axe and dharia after giving information. Recovery memo and information memo were prepared. On 9th May, 1977, the accused then gave an information about the silver ornaments. As information memo was prepared and then the accused was taken to the place where he led the police party, as per the information, to PW/12 Kanhaiyalal Gold-smith of Malpura and Kanhaiyalal gave to silver Kadiyas and also some melted silver, which he had prepared after melting Hasali. Recovery memos were prepared. A note - book was also recovered, which had a mention that Rs. 360/- of Ratna is, thus, kept, was alleged to belong to Kanhaiyalal and this amount was for the ornaments. Remand was taken upto 14th May, 1977. On 15th May, 1977. Ex. P/7 was moved by the accused at the residence of the Magistrate for permitting him to make confession. The Magistrate took the prosecution of sending the accused to the judicial custody and not taking the confession at that time in order to give him enough time to have serious thought about the matter. On 17th May, 1977 the accused was produced as per the directions and he made a confession Ex. P/26 at 11. 10 a. m. Identification of the silver ornaments and the clothes were made vide Ex. P/22 and Ex. P/23, which have been proved by PW/21 Prahlad. PW/1 Ram Chandra, PW/4 Amra and PW/24 Rama have also identified the blouse and the silver ornament, Kadiya. Investigation was concluded after examination of the accused and the accused was charge-sheeted as under:- 1. That you on or about the 12th day of Nov. 1976 did commit murder by intentionally (or knowingly) causing the death of Sampati D/o Ramchandra, Regar and thereby committed an offence punishable under Sec. 302 of the Indian Penal Code. 2. That you on or about the 12th day of 1976 kidnapped or abducted Mst. Sampati D/o Ram Chandra, Regar in order that the said Sampati might be murdered and thereby committed an offence punishable u/s 364 of the Indian Penal Code and within my cognizance. 3. That you on or about the 12th day of Nov. 1976 committed robbery of the property of Smt. Sampati d/o Ramchandra and that as such, you voluntarily caused hurt to the said Sampati and thereby committed offence punishable u/s. 394 of the Indian Penal Code and within my cognizance. 4. That you on or about the 12th day of Nov. 1976 dishonestly received or returned a stolen property to wit, one pair or Kari and one silver khungali belonging to Sampati D/o Ramchandra, knowing or having reason to believe the same to be stolen property and that you thereby committed an offence punishable u/s 411 of the Indian Penal Code and within any cognizance. " The accused denied the charge. The prosecution examined 25 witnesses and produced 44 documents and various articles. The defence examined DW/1 Hanumanand produced Ex. D/1 to Ex. D/5. After completion of the investigation the accused was examined under Sec. 313, Cr. P. C. and he denied all the allegations and mentioned that the confession was recorded by beating and torturing by the police and it was not a free and voluntary confession. After hearing the arguments the trial Court framed various points to be considered, divided into 7 parts and decided them. After an elaborate discussion of the entire evidence and the various legal points involved in the case and decided the case.
(3.) MR. Surana appearing on behalf of the accused-appellant has challenged the finding of the trial Court on various grounds. The principles submission of Shri Surana is that the confession was neither voluntary nor recorded according to law and, therefore, it is vitiated. According to MR. Surana, it was the result of police beating and torture and the Magistrate did not take the usual precautions required by Sec. 164 read with Sec. 281, Cr. P. C. Mr. Surana pointed out that the accused retracted the confession by denial of the charge. The charge was framed and read over to him. Again, when he was examined under Sec. 313, Cr. P. C. he gave a detailed version as to how he was tortured and beaten for making the confession. Shri Surana has pointed out that the learned Magistrate committed a serious error in not recording the statement of the accused in question and answer form. He did not take the precaution of putting all the questions which are prescribed in the prescribed form. He has further pointed out that the confession is not a voluntary one because the accused was sent to the police lock-up after making of the confession. He was not told that he would be sent to the police lock-up. Shri Surana also argued that third degree method of torture and beating for making confession was adopted. It was argued that the accused is helpless in police custody and if the court accepts the confession, like the present one, it would be encroaching the provisions of Sec. 164 Cr. P. C. and would be denial of justice to the accused, as the accused is presumed to be innocent unless the prosecution is able to prove the guilt against him beyond any manner of doubt Mr. Surana also pointed out that the burden is always on the prosecution and the accused is not in a position to prove beating and torture given to him. But, the Court should read between the lines if the facts and circumstances of the case are established in that respect. Mr. Surana relied upon various judgments in this respect and referred the case of Ramham Vs. The State of Rajasthan (1 ). He also relied upon the following dacisians:-Bhanwar Lal vs. The State (2), Prag vs. Emperior (3) and Badri Vs. State of U. P. (4 ). Mr. Surana then pointed out that so far as the recovery of weapons is concerned, blood grouping has not been done and, therefore, the recovery cannot be used against the accused. He then pointed out that so far as articles are concerned, firstly the evidence in support of the recovery of so called discovery is not reliable. Moreover, there was no discovery as held in Kottaya Vs. Emperor (5 ). He further pointed out that the circumstances of absconding cannot be used against the accused and relied on Kartar Singh vs. State of Punjab (6 ). ;